FDR on the 150th Anniversary of Congress

I am now working away on the Bingham edits, so blogging will be light over the next few weeks. (In fact, I will soon post the Introduction of the book for all to see.)

In the meantime, I thought I would post an excerpt from a speech that FDR gave to Congress in 1939 to mark its 150th anniversary. Here the President gives a detailed account of the Bill of Rights. Kind of neat–I had not seen this until recently.

“[T]here came about [in 1788] that tacit understanding that to the Constitution would be added a Bill of Rights. Well and truly did the first Congress of the United States fulfill that first unwritten pledge; and the personal guarantees thus given to our individual citizens have established, we trust for all time, what has become as ingrained in our American natures as the free elective choice of our representatives itself.

In that Bill of Rights lies another vast chasm between our representative democracy and those reversions to personal rule which have characterized these recent years.

Jury trial: do the people of our own land ever stop to compare that blessed right of ours with some processes of trial and punishment which of late have reincarnated the so-called ‘justice’ of the dark ages?

The taking of private property without due compensation: would we willingly abandon our security against that in the face of the events of recent years?

The right to be safe against unwarrantable searches and seizures: read your newspapers and rejoice that our firesides and our households are still safe.

Freedom to assemble and petition the Congress for a redress of grievances: the mail and the telegraph bring daily proof to every Senator and every Representative that that right is at the height of an unrestrained popularity.

Freedom of speech: yes, that, too, is unchecked for never in our history has there been so much of it on every side of every subject. It is indeed a freedom, which, because of the mildness of our laws of libel and slander, goes unchecked except by the good sense of the American people. Any person is constitutionally entitled to criticize and call to account the highest and the lowest in the land–save in only one exception. For be it noted that the Constitution of the United States itself protects Senators and Representatives and provides that ‘for any speech or debate in either House they shall not be questioned in any other place.’ And that immunity is most carefully not extended to either the Chief Justice of the United States or the President.

Freedom of the press: I take it that no sensible man or woman believes that it has been curtailed or threatened or that it should be. The influence of the printed word will always depend on its veracity; and the nation can safely rely on the wise discrimination of a reading public which with the increase in the general education is well able to sort truth from fiction. Representative democracy will never tolerate suppression of true news at the behest of government.

Freedom of religion: that essential of the rights of mankind everywhere goes back also to the origins of representative government. Where democracy is snuffed out, where it is curtailed, there, too, the right to worship God in one’s way is circumscribed or abrogated. Shall we by our passiveness, by our silence, by assuming the attitude of the Levite who pulled his skirts together and passed by on the other side, lend encouragement to those who today persecute religion or deny it?

The answer to that is ‘no’ today, just as in the days of the first Congress of the United States it was ‘no.’

Share

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

3 Responses

FDR in discussing “freedom of speech,” made reference to the immunity provided in the Constitution protecting Senators and Representative: “And that immunity is most carefully not extended to either the Chief Justice of the United States or the President.” Was this intended as a dig?

I downloaded and printed out the entire speech for future reference. The penultimate [my favorite word] paragraph of the speech immediately following the portion quoted in Gerard’s post is interesting:

“Not for freedom of religion alone does this nation contend by every peaceful means. We believe in the other freedoms of the Bill of Rights, the other freedoms that are inherent in the right of free choice by free men and women. That means democracy to us under the Constitution, not democracy by direct action of the mob; but democracy exercised by representatives chosen by the people themselves.”

FDR’s reference to ” … the other freedoms that are inherent in the right of free choice by free men and women.” may have been a prelude to his Second Bill of Rights speech following his election to a fourth term. Perhaps if FDR had completed his fourth term, we would have had FDRCARE.

Well, it may be surmised that he was speaking of our federal governmental process. Note that he interjected the phrase “under the Constitution.”

I doubt that FDR (or anybody else) would suggest that a small town making a legislative decision by referendum would be “direct action of the mob” in contravention of his concept. The question, then, would be “when does the mob become big enough to call for representational decisions?”

And I suspect that any lawyer (which FDR was) would have to say “well, the Constitution tells us how our federal government works. The states have to decide for themselves.”